Wzany v Minister for Immigration
[2010] FMCA 211
•23 March 2010
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| WZANY v MINISTER FOR IMMIGRATION & ANOR | [2010] FMCA 211 |
| MIGRATION – Application for an extension of time – no appearance by applicant – whether in interests of administration of justice to extend time – factors – whether merit in application. |
| Migration Act 1958 (Cth), ss.36(2), 65(1), 422B, 424A(1), 476, 477(1),(2) & (3)(b) Migration Legislation Amendment Act (No. 1)2009 (Cth), Schedule 2, Item 7(2) |
| Alzoubi v Minister for Immigration and Citizenship [2009] FMCA 689 Deputy Commissioner of Taxation v Cumins [2007] FMCA 1841 Genovese v BGC Construction Pty Ltd [2006] FMCA 1507 Goodall v Nationwide News Pty Limited [2007] FMCA 218 Hunter Valley Developments Pty Ltd v Minister for Home Affairs and Environment (1984) 3 FCR 344 Jackamarra v Krakouer (1998) 195 CLR 516; [1998] HCA 27 Minister for Immigration and Multicultural Affairs v Yusuf (2001) 206 CLR 323; [2001] HCA 30 NAHI v Minister for Immigration and Multicultural and Indigenous Affairs (2004) FCA FC 10 Plaintiff S157/2002 v Commonwealth of Australia (2003) 211 CLR 476; [2003] HCA 2 SZBYR v Minister for Immigration and Citizenship (2007) 81 ALJR 1190; [2007] HCA 26 SZBEL v Minister for Immigration and Multicultural and Indigenous Affairs (2006) 228 CLR 152; [2006] HCA 63 SZMNO v Minister for Immigration and Citizenship [2009] FCA 797 SZNSI v Minister for Immigration and Citizenship [2010] FCA 223 SZMFJ v Minister for Immigration & Anor [2009] FMCA 771 WAJU v Minister for Immigration and Multicultural Affairs [2004] FCA 150 WZANW v Minister for Immigration and Citizenship [2009] FMCA 1075 WZANX v Minister for Immigration & Anor [2009] FMCA 1010 |
| Applicant: | WZANY |
| First Respondent: | MINISTER FOR IMMIGRATION & CITIZENSHIP |
| Second Respondent: | REFUGEE REVIEW TRIBUNAL |
| File Number: | PEG 225 of 2009 |
| Judgment of: | Lucev FM |
| Hearing date: | 23 March 2010 |
| Date of Last Submission: | 23 March 2010 |
| Delivered at: | Perth |
| Delivered on: | 23 March 2010 |
REPRESENTATION
| For the Applicant: | No appearance |
| Counsel for the Respondents: | Mr A Gerrard |
| Solicitors for the Respondents: | Australian Government Solicitor |
ORDERS
The applicant’s application for an extension of time in which to file the application be dismissed.
The application be dismissed.
The applicant pay the first respondent’s costs in the sum of $5865 by 23 April 2010.
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT PERTH |
PEG 225 of 2009
| WZANY |
Applicant
And
| MINISTER FOR IMMIGRATION & CITIZENSHIP |
First Respondent
| REFUGEE REVIEW TRIBUNAL |
Second Respondent
REASONS FOR JUDGMENT
(Ex tempore reasons edited from transcript)
The matter before the Court is an interim application to extend time in which to file an application to this Court for judicial review under s.476 of the Migration Act 1958 (Cth)[1] in relation to a decision of the Refugee Review Tribunal.[2]
[1] “Migration Act”. Unless otherwise specified reference to sections of an Act are to the Migration Act.
[2] “Tribunal”.
The applicant has not appeared (and the matter has been called outside the Court). Therefore the interim application for extension of time could be dismissed for want of appearance, but the first respondent has requested, and the Court has agreed, that the Court should deal with the interim application on its merits.
The application proper was made on 2 December 2009, and that application cites three grounds in support of the application. They are:
1.RRT refusal decision is not fair;
2.They use all negative cases to refuse my application; and
3.In China I live in fear.
The extension of time application, which is part of the same application, was made on the same date, and the ground set out in support of the application for extension of time is:
1.I am in detention centre. I fear to go back to China.
There was also an affidavit filed by the applicant in support of the application, and insofar as is relevant, it says as follows:
1.I am Christian, if I go back I will be put in jail or detention centre;
2.I did not lodge application on time as I did not know how to lodge it after I was refused by RRT.
Section 477(1), (2) and (3)(b) gives the Court the capacity to grant an extension of time in which to allow an application to be made.
Section 477(1) provides that an application to this Court under s.476 must be made to the Court within 35 days of the date of the migration decision. Section 477(3)(b) defines the date of the migration decision, where a migration decision is made by the Tribunal, to be the date of the written statement under s.430(1). In this case, that date is 2 September 2008. By reason of the Migration Legislation Amendment Act (No. 1) 2009 (Cth), Schedule 2, Item 7(2), this migration decision, because it was made prior to the commencement of Schedule 2, is deemed to have been made on 15 March 2009.[3] Section 477(2) provides that the Court may extend the 35 day period as the Court “considers appropriate”, but only “if” two conditions in paragraphs (a) and (b) are met, namely:
(a)an application for that order has been made in writing to the Federal Magistrates Court specifying why the applicant considers that it is necessary in the interests of the administration of justice to make the order; and
(b)the Federal Magistrates Court is satisfied that it is necessary in the interests of the administration of justice to make the order.
Because the conjunctive “and” is used, both subparagraphs must be satisfied.
[3] Alzoubi v Minister for Immigration and Citizenship [2009] FMCA 689 at paras.6 and 7 per Scarlett FM.
The application and affidavit do not specify why it is that the applicant considers it necessary in the interests of the administration of justice that an order extending time be made. Read together, they advert to the following matters:
a)that the applicant is Christian and fears going back to China where she believes she will be put in a jail or detention centre;
b)that the applicant is in a detention centre in Australia; and
c)that the applicant did not lodge the application because she did not know how to do so after her application for review was refused by the Tribunal.
In the Court’s view, none of the above matters go to the interests of the administration of justice, unless, fundamentally, the application can be seen to have some merit, in which case, the interests of the administration of justice might necessitate it being heard and determined by the Court. The Court can only extend time for filing of the application for judicial review if it is satisfied that it is in the interests of the administration of justice to extend time.
In Genovese v BGC Construction Pty Ltd,[4] the Court, there considering an application for transfer of proceedings to the Federal Court, in which a mandatory factor for consideration was the interests of the administration of justice, observed as follows:
24.In BHP Billiton Ltd v Schultz (2004) 221 CLR 400, [2004] HCA 61, (“Schultz”) the High Court considered the nature of the “interests of justice”: Gleeson CJ, McHugh and Heydon JJ CLR at p.421, HCA at par [15] said:
The interests of justice are not the same as the interests of one party, and there may be interests wider than those of either party to be considered. Even so, the interests of the respective parties, which might in some respects be common (as, for example, cost and efficiency), and in other respects conflicting, will arise for consideration. The justice referred to in s.5 is not disembodied, or divorced from practical reality.
[4] [2006] FMCA 1507 (“Genovese”).
25.Gummow J observed that the interests of justice “are even-handed”; CLR at p.445, HCA at par [100] while Callinan J referred to the requirement to “do equal justice”: CLR at p.492, HCA at par [258].
26.Some of the factors ordinarily considered when assessing the interests of justice are factors which it is mandatory for this Court to take into account under the Federal Magistrates Act and Federal Magistrates Court Rules: for example, costs and convenience of hearing and determination, earlier hearing of proceedings, availability of particular proceedings and pending proceedings in another court (in this case the Federal Court).
…
28.In assessing the “interests of the administration of justice” similar considerations to those in Schultz apply, with the qualification related to “administration of justice”. Administration means “management”: Concise Oxford Dictionary, 7th Edition (Oxford: Oxford University Press, 1984) at p.13. Thus, s.39(3)(d) of the Federal Magistrates Act is directed to a consideration of the interests of the management of justice, which must mean management by the Court of the proceedings pending before the Court.[5]
[5] Genovese at paras.24-26 and 28 per Lucev FM.
The factors relevant to a consideration of whether it is in the interests of the administration of justice to extend time on an application for a judicial review of a Tribunal decision were identified in SZMFJ v Minister for Immigration & Anor[6] as follows:
[6] [2009] FMCA 771 (“SZMFJ”).
(1) The extent of the delay and the reason for the delay.
(2) Whether there is any merit in the application.
(3) Whether there is any prejudice to the respondents.
(4) The impact on the applicant.
(5) The interests of the public at large.
(6) The Court’s discretion itself.[7]
[7] SZMFJ at para.44 per Nicholls FM.
The Court considers that the factors identified in SZMFJ are proper factors for the purposes of assessing the interests of the administration of justice in an extension of time application for judicial review of a Tribunal decision, and proposes to apply them in this case.[8]
[8] WZANW v Minister for Immigration and Citizenship [2009] FMCA 1075 at paras.26 and 27 per Lucev FM.
Turning to delay, the delay in this case is enormous. The application has been filed 277 days outside of the 35 day time limit under s.477(1). Thus the delay itself is almost eight times longer than the specified statutory time for filing of the application. If there is no acceptable reason for delay, it is likely to be a delay of a length fatal to the application to extend time.[9]
[9] SZMFJ at para.76 per Nicholls FM; WZANX v Minister for Immigration & Anor [2009] FMCA 1010 at para.13 per Lucev FM, where the Court observed, in refusing an application for an extension of time, that there was “a long delay, more than twice the specified statutory period.”
The extent of the delay must be balanced against any reason for the delay. The only reason given for a delay is that the applicant says she did not know how to lodge the application after her review application was refused by the Tribunal. There is no evidence that the applicant:
a)did not know that she had a right to apply for judicial review;
b)contemplated applying earlier; or
c)took any steps to try to find out how to apply earlier than she did.
In that regard, it is relevant to note that at the time of responding to the Tribunal hearing invitation, the applicant had a solicitor as an authorised recipient,[10] and indeed that solicitor was the same solicitor who certified documents on her original protection visa application.[11] The solicitor is, the Court observes, a solicitor who practises in migration law and whose clients regularly appear before this Court as presently constituted.
[10] Court Book (“CB”) 84.
[11] See, for example, CB 54 and 55.
In the above circumstances, no reasonable excuse for the delay has been established by the applicant, and the length of the delay alone is fatal to the extension of time application.
Turning to the merits of the application, if the Court determines that the substantive application is without merit, an extension of time may be refused.[12] This is because where, as here, a substantive right is vested in a party as a consequence of judgment, or in this case decision, and the time in which to appeal or apply further has gone, the time for appealing or making the application will not be extended unless the proposed appeal or application has some prospects of success, nor if it is hopeless, unarguable or bound to fail.[13]
[12] WAJU v Minister for Immigration and Multicultural Affairs [2004] FCA 150 at para.18, per Moore J; SZMNO v Minister for Immigration and Citizenship [2009] FCA 797 at para.33 per Barker J.
[13] Jackamarra v Krakouer (1998) 195 CLR 516 at 521 per Brennan CJ and McHugh J and 540 per Kirby J; [1998] HCA 27 at para.7 per Brennan CJ and McHugh and para.66 per Kirby J. (“Jackamarra”).
The necessary assessment of the merit of the case for these purposes is broad. It involves a consideration of the outline of the case in relation to which the party seeking the extension, here the applicant, bears the burden of persuasion.[14] In this case the applicant’s absence means that apart from what can be discerned from the papers, nothing is put before the Court on behalf of the applicant.
[14] Jackamarra CLR at 519 per Brennan CJ and McHugh J and 540 per Kirby J; HCA 27 at para.7 per Brennan CJ and McHugh and para.66 per Kirby J.
In making the broad assessment of merit the Court has had regard to the fact that a decision of the Tribunal is only liable to be set aside upon review if it involves jurisdictional error.[15] An error by an administrative tribunal such as the Tribunal, will only constitute jurisdictional error if the Tribunal:
a)identifies a wrong issue;
b)asks a wrong question;
c)ignores relevant material; or
d)relies on irrelevant material,
in such a way that the Tribunal’s exercise or purported exercise of power is thereby affected, resulting in a decision exceeding or failing to exercise the authority or powers given under the relevant statute.[16]
[15] Plaintiff S157/2002 v Commonwealth of Australia (2003) 211 CLR 476 at 506 per Gaudron, McHugh, Gummow, Kirby and Hayne JJ; [2003] HCA 2 at para.76 per Gaudron, McHugh, Gummow, Kirby and Hayne JJ.
[16] Minister for Immigration and Multicultural Affairs v Yusuf (2001) 206 CLR 323 at 351 per McHugh, Gummow and Hayne JJ; [2001] HCA 30 at para.82 per McHugh, Gummow and Hayne JJ; WZANI v Minister for Immigration and Citizenship [2009] FCA 526 at paras.19-21 per Barker J (“WZANI”).
Therefore a factual finding of the Tribunal going to the merits of the application is not capable of being set aside as jurisdictional error.[17] Thus a Tribunal decision turning entirely on assessment of an applicant’s credibility will not be open to challenge because it amounts to an impermissible attempt to undertake further merits review.[18]
[17] NAHI v Minister for Immigration and Multicultural and Indigenous Affairs (2004) FCA FC 10 at para.10 per Gray, Tamberlin and Lander JJ; WZANI at para.23 per Barker J
[18] WZANI at para.22 per Barker J.
The grounds of the applicant’s application have been set out above.[19] The third ground reveals no error; it is a statement of personal feeling, not an attribution of error by the Tribunal.
[19] See para.3 above.
The first and second grounds might be seen as alleging a denial of procedural fairness, however, as is often said, s.422B provides that Division 4 of Part 7 provides an exhaustive statement of, or comprehensive code in relation to, the natural justice hearing rule.[20] The applicant does not point to any section within Division 4 that has been breached by the Tribunal. Further, the Tribunal is not required by s.424A(1) to put to the applicant its subjective appraisals of the evidence, reveal its thought processes or identify gaps, defects or lack of detail or specificity in the evidence.[21]
[20] SZNSIv Minister for Immigration and Citizenship [2010] FCA 223 at paras.13-15 per Flick J.
[21] SZBYR v Minister for Immigration and Citizenship (2007) 81 ALJR 1190 at 1196 per Gleeson CJ, Gummow, Callinan, Heydon and Crennan JJ; [2007] HCA 26 at para.18 per Gleeson CJ, Gummow, Callinan, Heydon and Crennan JJ.
In this case the Tribunal considered the ultimate question of satisfaction, namely whether it was satisfied that the applicant had a well founded fear of persecution for a Convention reason. The Tribunal considered the ultimate question in proper form having regard to:
a)the prescribed criteria;
b)sections 36(2) and 65(1);
c)the definition of “refugee”; and
d)that element of the definition of “refugee”, as to whether there was a well founded fear based on a “real chance” of persecution for a Convention reason.[22]
[22] CB 92-94.
The Tribunal’s ultimate finding that the applicant was not a devout Christian or of interest to the Chinese authorities was based on:
a)the applicant’s delay in making her protection visa application;[23]
b)the inconsistency between the claims made in questions 41 to 45 of her protection visa application, and the claims made to the Tribunal during the hearing;[24] and
c)the applicant’s limited knowledge of Christianity and the church that she claimed to belong to in China.[25]
[23] CB 96.
[24] CB 97.
[25] CB 97-98.
The Tribunal’s approach to the assessment of the applicant’s evidence was one it was fairly entitled to undertake. The Tribunal’s findings in relation to the credibility of the applicant were a fact finding task within its jurisdiction. Any grievance as to the Tribunal’s conclusions in this regard or as to any weight attributed to any piece of oral evidence, is a grievance as to the merits of the Tribunal decision. In the absence of jurisdictional error it is not the task of this Court to review the merits of the Tribunal decision.
In the circumstances, it is clear that the Tribunal was not able to reach that level of satisfaction required or necessary to grant the applicant a protection visa. It was for the applicant to establish her case to the satisfaction of the Tribunal.[26] In this case the applicant failed to do so in circumstances where the Tribunal, on the evidence available to this Court, reviewed the facts and made findings in respect of each issue. The Tribunal’s findings reveal no jurisdictional error and it is not the task of this Court to review the merits of the Tribunal decision. The applicant has therefore failed to establish that there is any, or any sufficient, merit in the application which would warrant a finding that it had some prospect of success. In the Court’s view the applicant’s substantive application has, on a broad assessment, no prospect of success.
[26] SZBEL v Minister for Immigration and Multicultural and Indigenous Affairs (2006) 228 CLR 152 at 164 per Gleeson CJ, Kirby, Hayne, Callinan and Heydon JJ; [2006] HCA 63 at para.40 per Gleeson CJ, Kirby, Hayne, Callinan and Heydon JJ.
In relation to prejudice to the respondent, a mere absence of prejudice would not be sufficient of itself to justify the grant of an extension of time.[27] However, in this case, there is in the Court’s view, prejudice to the first respondent. The prejudice to the first respondent in granting an extension of time is that identified in SZMFJ, namely:
The burden of the cost of additional litigation in circumstances where there is a lack of merit in the substantive application.[28]
[27] Hunter Valley Developments Pty Ltd v Minister for Home Affairs and Environment(1984) 3 FCR 344 at 349 per Wilcox J.
[28] SZMFJ at para.195 per Nicholls FM.
Turning to the impact on the applicant, the rejection of the extension of time application will no doubt have a significant impact upon her. It will probably mean that at some point in time she will be required to leave Australia and possibly return to China. However, given the findings of the Tribunal there is nothing to suggest that there would be adverse consequences for the applicant in any return to China. Therefore, there would be no adverse impact on the applicant if the extension of time application were not to be granted.
Turning to the interests of the public at large, this Court has observed that:
The interests of the Australian public at large would plainly not be served with the refoulment of a refugee to a country of claimed persecution.[29]
But that is not the case here. The Tribunal, on the basis of findings that were open to it on the evidence and information before it, has found that the applicant is not a refugee. There is otherwise nothing in the applicant’s circumstances which, in the Court’s view, would excite the interests of the public at large. However, the interests of the public at large might be said to be affected by the grant of an extension of time in circumstances where the Court has found that the substantive application lacks merit. It cannot be said to be in the interests of the public at large for this Court to embark upon a merit hearing of an application which, even on the broad assessment required for the purposes of an extension of time application, has been found to have no merit. Furthermore, that rationale is supported by the objects of the Federal Magistrates Act 1999 (Cth)[30] and the Federal Magistrates Court Rules 2001 (Cth),[31] which, for relevant purposes, have been summarised by this Court as follows:
Reading together the objects of the FM Act in s.3, the mode of operation in s.42 and having regard to the objects in the FMC Rules and r.1.03, it is apparent that the Court is intended to operate in a manner:
a)as informal as possible in the exercise of judicial power;
b)which is not protracted in its proceedings;
c)which resolves proceedings justly, efficiently and economically;
d)uses streamlined procedures; and
e)avoids undue delay, expense and technicality.[32]
[29] SZMFJ at para.194 per Nicholls FM.
[30] “FM Act”.
[31] “FMC Rules”.
[32] Goodall v Nationwide News Pty Limited (2007) FMCA 218 at para.21 per Lucev FM.
Delay, expense and protraction of the proceedings would be the result of an extension of time and those outcomes are not in the interests of the public at large, where the substantive application has no merit.
Turning to the exercise of the Court’s discretion, this requires the Court to look objectively at the various factors and balance them, but does not require that the Court give equal weight to all of the factors to be considered in the exercise of the discretion.[33] In this case, no discretionary factor weighs in the applicant’s favour. The most significant factors weighing against the applicant are the delay and the Court’s finding that the substantive application has no merit and therefore no prospect of success. In the circumstances, the exercise of the Court’s discretion to extend time would be futile. The Court has come to the view that it will not exercise its discretion so as to grant an extension of time.
[33] Deputy Commissioner of Taxation v Cumins (2007) FMCA 1841 para.47 per Lucev FM.
The Court has therefore concluded, as it has indicated, that it ought not exercise its discretion to extend time for the filing of the application, primarily because of the delay, and because the merits of the application are such that it does not have any prospect of success. It follows from that conclusion that the applicant’s application for an extension of time in which to file the application much be dismissed. The application itself must also therefore be dismissed as being incompetent.
I certify that the preceding thirty-one (31) paragraphs are a true copy of the reasons for judgment of Lucev FM
Associate: S Gough
Date: 23 March 2010
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